Court OKS Delta smelt protections

FRESNO (AP) — A federal appeals court on Thursday largely upheld a 2008 plan that called for restrictions on water deliveries from California’s Sacramento-San Joaquin Delta to protect a tiny, threatened fish.

In a 2-1 ruling, the 9th Circuit Court of Appeals panel said that much of the U.S. Fish and Wildlife Service’s 2008 biological opinion about the Delta smelt was not arbitrary and capricious as a lower court judge had ruled.

The decision won’t have any practical effect on water flows since protections for the smelt were kept in place while the lower court ruling was appealed.

Farmers and water districts had objected to the biological opinion and said Thursday that they were disappointed by the ruling. Restrictions on water deliveries have spelled major losses for growers in the state’s farm belt who rely on the Delta to irrigate crops.

“The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species,” said Damien Schiff, an attorney for Pacific Legal Foundation representing farmers in the case. “Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.”

Thomas Birmingham, general manager of the Fresno-based Westlands Water District, said he is considering options for further judicial review. Westlands is the nation’s largest supplier of irrigation water, serving about 600 family-owned farms in California’s Central Valley. The farmers they serve are already grappling with the harsh drought conditions, he said.

Birmingham supports efforts in the U.S. Congress to change how federal laws protecting endangered wildlife are applied to two vast water delivery systems operated by the state and federal governments — the State Water Project and the Central Valley Project.

“It is particularly frustrating that water dedicated to protecting the Delta Smelt has not provided any protection to the species,” Birmingham said. “The population of the species continues to decline.”

Environmentalists praised the ruling.

“At the core of this decision, the 9th Circuit says this (study) is fine, and that at the time that it was finalized the agency had considered the best available science of the Delta smelt,” said Trent Orr, an attorney at Earthjustice, a group that challenged the lower court’s dismissal of fish and wildlife’s study.

Kate Poole, an attorney for the Natural Resources Defense Council, refuted the theory that water regulations haven’t helped the endangered smelt.

“It’s not as though a lot of water is being devoted to fish and wildlife in the drought,” she said. “They’re not getting sufficient supplies either.”

Thursday’s decision was the latest in a legal battle over the lower court’s 2010 decision invalidating the fish and wildlife study. Fish and wildlife officials found that, to protect the smelt, restrictions were needed on the use of massive pumps that move water from the North through the state’s system of canals that delivers the precious resource to farms and thirsty cities in central and southern California.

Agriculture and urban water districts sued to overturn the study and found support in the district court’s Judge Oliver Wanger. The judge invalidated the study, but allowed its protections to go into effect while the case was fought on appeal by environmental groups.

The water districts can now either ask the 9th Circuit to rehear the case, or appeal directly to the Supreme Court.